STATE OF NEW JERSEY DEPARTMENT OF LABOR DIVISION OF WORKERS COMPENSATION ATLANTIC CITY DISTRICT

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1 STATE OF NEW JERSEY DEPARTMENT OF LABOR DIVISION OF WORKERS COMPENSATION ATLANTIC CITY DISTRICT CAPE REGIONAL MEDICAL CENTER : (Jeffrey Davis) Petitioner, : CLAIM PETITION NO v. : RESERVED DECISION CAST & CREW PAYROLL, LLC. : Respondent : BY HON. INGRID L. FRENCH, J.W.C. This is a medical provider claim. The injured worker who was the recipient of this medical provider s service is a New Jersey resident who was employed by a California company when he was injured in an accident which occurred in the State of Pennsylvania. The injured worker chose to file his workers compensation claim in the State of Pennsylvania and, as of the date of the filing of this medical provider s claim in New Jersey, that injured workers compensation claim was still active and pending in the State of Pennsylvania. The injured worker s claim was investigated and accepted as a compensable claim in accord with Pennsylvania s Workers Compensation Statute and pursuant thereto the employer s Pennsylvania workers compensation carrier began authorizing all reasonable and related treatment. In order to effect that treatment, the Pennsylvania workers compensation carrier for the New Jersey resident s California employer initiated verbal and written contact with various medical providers and agreed to be held responsible for payment for the agreed upon services. Specifically, in this case, the Pennsylvania workers compensation carrier was Zurich Insurance Co. (hereinafter referred to as Zurich ). Zurich reached out to Cape Regional Medical Center (hereinafter referred to as Cape Regional ), a New Jersey medical provider, to perform a stress test for a New Jersey resident with a pending workers compensation claim in Pennsylvania. The services were provided pursuant to a written authorization from the Pennsylvania workers compensation carrier. The bill for the services performed by Cape Regional, which is the subject of this claim, was appropriately submitted by Cape Regional to Zurich for payment. Zurich paid Cape Regional s bill; presumably, in accord with the Pennsylvania Medical Cost Containment Regulations (34 Pa Code Sec.127 et seq.) and now, Cape Regional seeks a review and adjudication by a New Jersey workers compensation Judge as to the reasonableness of the payment made by the Pennsylvania workers compensation carrier. The subjectmatter of this claim is, therefore, what we commonly refer to as, balance billing. Both parties agree that all medical providers, including Cape Regional, have a right to dispute the reasonableness of any partial payment for medical services. The parties do not agree as to where Cape Regional can adjudicate its dispute and only the Respondent asserts the applicability of the following Pennsylvania statute. 1

2 See 34 Pa. Code Sec which says, in pertinent part,.. a provider who has submitted the required bills and reports to an insurer and who disputes the amount or timeliness of the payment made by an insurer, shall have standing to seek review of the fee dispute by the Bureau; and 34 Pa. Code Sec (a).which further provides that a provider who has submitted the reports and bills required by this section and who disputes the amount or timeliness of payment from the employer or insurer shall file an application for fee review with the department no more than thirty (30) days following notification of a disputed treatment or ninety (90) days following the original billing date of treatment See also 34 Pa. Code Sec clearly covering fee disputes involving out-of-state medical providers. Cape Regional has, however, in the alternative, chosen to file a Medical Provider Claim in New Jersey s workers compensation court. The only issue in dispute, therefore, is whether the authority granted under N.J.S.A. 34:15-15 and N.J.A.C. 12: (a)(3) gives a New Jersey Workers Compensation Court jurisdiction over a New Jersey medical provider s bill which was authorized and partially paid under an open and pending Pennsylvania workers compensation claim where there is neither a New Jersey workers compensation insurance claim, nor a pending New Jersey workers compensation claim petition. Under N.J.S.A. 34:15-15.Fees for treatments or medical services that have been authorized by the employer or its carrier or its third party administrator or determined by the Division of Workers Compensation to be the responsibility of the employer, its carrier or third party administrator, or have been paid by the employer, its carrier or third party administrator pursuant to the workers compensation law, R.S.34:15-1 et seq., shall not be charged against or collectible from the injured worker. Exclusive jurisdiction for any disputed medical charge arising from any claim for compensation for a work-related injury or illness shall be vested in the division. The treatment of an injured worker or the payment of workers compensation to an injured worker or dependent of an injured or deceased worker shall not be delayed because of a claim by a medical provider. Under N.J.A.C. 12: (a)(3). A medical provider or carrier, who claims to have performed services or made payment for a work related condition or disability, may intervene by motion in a pending case, to seek payment or assert a lien. Such motion shall be supported by an affidavit or certification and shall include a copy of the bills for which payment is being sought. In the beginning of 2008, as a result of an increase in disputes concerning the appropriate payment for medical treatment rendered to workers compensation claimants and the resultant delay in the administration of an injured workers claim by the New Jersey Division of Workers Compensation (hereinafter referred to as the Division ), the Division created a standard pleading form entitled: Medical Provider Application for Payment or Reimbursement of Medical Payment to support the intervention of the medical provider into a pending claim petition filed by the petitioner. The pleading, at that time, was intended to evolve into a companion claim petition in the name of the provider which could stand on its own after the resolution of the Petitioner s claim petition. The separate pleading allowed the Division to better track the number of medical provider claims and it allowed the injured worker s case to resolve without awaiting the determination of the reasonableness of the provider s bill. Eventually, the Division began allowing the newly created medical provider claim (hereinafter the MPC ) to be filed with the Division, regardless of whether or not the petitioner had already filed a claim 2

3 petition and without the prerequisite of a Motion to Intervene. There does not appear to have been a corresponding amendment to the Administrative Code to support the Division s abandonment of the need for a Motion to Intervene. The Medical Provider Application for Payment or Reimbursement of Medical Payment that was created by the Division incorporates an attestation which reads, as follows: Applicant, alleging that the Employee sustained an injury by an accident arising out of and in the course of his/her employment with Respondent, compensable under R.S. 34:15-7 et seq., supplements and amendments, respectfully states: The Court interprets the above attestation as placing the medical provider on notice that they will be expected to prove the Court s subject matter jurisdiction over the disputed bill. In other words, access to the New Jersey Workers Compensation Courts by a medical provider who files the newly created MPC is restricted to only those medical providers who could attest to the compensability of the employee/patient s injury by an accident in New Jersey. Here, Cape Regional has filed an MPC; thereby attesting to the compensability of the injured worker s accident in New Jersey. The Respondent answered Cape Regional s MPC, denying that this Court has jurisdiction and pursuant thereto filed its Motion to Dismiss for Lack of Jurisdiction. The Respondent asserts therein that the Court has no jurisdiction over medical payments issued pursuant to Pennsylvania s Workers Compensation Law. According to the Respondent, Cape Regional s claim can only proceed in Pennsylvania, where the injured worker has a currently pending claim. Cape Regional opposes the Respondent s Motion to Dismiss on several grounds. First, it cites the Christodoulou decision as establishing an independent basis for a medical provider to pursue payment from the employer. Cape Regional also argues that the central event which gives rise to the medical provider s claim is the treatment provided to the New Jersey resident by a New Jersey medical provider in New Jersey. Additionally, Cape Regional asserts that the 2012 amendment to N.J.S.A. 34:15-15 gives this Court exclusive jurisdiction over any disputed medical charge arising from any claim for compensation. After reviewing the pleadings and conferring with counsel, this court questioned Cape Regional s attestation to the compensability of the worker s underlying injury by an accident because there had never been an investigation by a New Jersey workers compensation carrier or a New Jersey Respondent which, preliminarily, determined the compensability of their patient s accident under New Jersey s Workers Compensation Statute. The Court, therefore, granted Cape Regional leave to amend its submissions to the Court and specifically address the issue of the compensability of their patient s underlying claim in New Jersey. The record was closed following submission of Cape Regional s supplemental assertions and oral arguments. Neither party has proffered lay testimony for consideration by the Court. FINDINGS N.J.A.C. 12:235, Subchapter 3 governs the filing of formal claims in our courts. Under N.J.A.C.12: (a)3, the signature of an attorney or party pro se constitutes a certification that the signatory has read the pleading or motion and that to the best of the signatory s knowledge, information and belief there is good ground to support it. 3

4 By virtue of the filing of this MPC, with its jurisdictional attestation, Cape Regional swore that the balance bill for which they were seeking this Court s determination was associated with a medical service that was related to an accident that was compensable under New Jersey s Workers Compensation Statute. Since this Court did not believe that Cape Regional knowingly filed a false pleading, the Court granted Cape Regional leave to amend or supplement their MPC and provide the Court with additional submissions to address the compensability of the underlying claim in New Jersey. There was nothing in Cape Regional s moving papers, oral arguments or in any of its supporting or supplemental submissions which satisfies Cape Regional s burden of proving that the worker for whom they provided services had an accident that would be compensable under New Jersey s Workers Compensation Statute. In fact, the only information that Cape Regional knows about this worker s (or their patient s) accident is that the worker lives in New Jersey, had an accident in Pennsylvania and they were authorized by a Pennsylvania workers compensation carrier to provide a medical service to that worker. Cape Regional, therefore, has insufficient knowledge on which to attest to the compensability of their patient s underlying accident in New Jersey. As to Cape Regional s specific arguments in favor of the Court s jurisdiction, the Court opines as follows: 1) This Court does not consider the treatment of this injured worker to be the central event upon which jurisdiction in a MPC is based. The central event is an accident which occurs out of and in the course of the injured worker s employment, as determined by the statutes and laws of the State of New Jersey. The exclusive jurisdiction for any disputed medical charge that is established under N.J.S.A. 34:15-15 presumes the original jurisdiction of an underlying claim established under N.J.S.A. 34: In other words, the Court finds that Cape Regional s right to seek a determination as to the reasonableness of the payments made on behalf of the injured worker is a right that is derivative of the injured workers rights and although a claim petition need not be filed, there must, necessarily, be an underlying accident which is compensable under New Jersey s workers compensation statute. Since the injured worker has the burden of proving the compensability of his or her work-related accident in New Jersey, Cape Regional must, stand in the shoes of the injured worker and persuade this Court by a preponderance of believable, credible evidence that the bill for which they seek the Court s determination arises from an accident which is compensable under New Jersey s workers compensation statute. Cape Regional has summarily stated that J.D., a resident of New Jersey, was injured in Pennsylvania while in the course of his employment. The Court has not been provided with any other details regarding the injured worker s accident. Cape Regional has, therefore, failed to sustain its burden of proving that J.D. had an accident which would be compensable in New Jersey. The jurisdictional attestation which is on the MPC pleading form is intended to restrict access by the medical provider to only those claims that arise from claims that are compensable in New Jersey. If the medical provider cannot prove that its bill is related to an accident which arose out of and in the course of employment pursuant to the New Jersey Workers Compensation statute, then this Court lacks jurisdiction to decide its claim. 2) The Christodoulou decision is not a decision about jurisdiction. It is a decision which came about as a result of a claim that settled under N.J.S.A. 34:15-20 without the participation of a medical provider. The Christodoulou decision clarified two important rights as to the medical provider. First, it made clear that the medical provider was no different than a worker s dependents or PIP carrier when it came to its right to participate in the underlying workers compensation claim and the need for the employer and employee to obtain a specific waiver of 4

5 that right prior to any final resolution of a claim which extinguished their respective rights. See Kibble v. Weeks Dredging Constr. Co., 161 N.J. 178, 194 (1998) and Hetherington v. Briarwood Coachlight, 253 N.J. Super. 484, 489 (1992). Additionally, and again in the same manner as the workers dependent and PIP carrier, the Christodoulou decision made clear that the medical provider has an independent basis to pursue payment from the employer. See Christodoulou at 346. This Court s jurisdiction for both a dependency claim and a PIP claim rely, at first, on the existence of an underlying compensable claim and Christodoulou merely added the medical provider to the list of third parties who have a right to participate in the underlying claim. Lastly, Respondent argued that a New Jersey Workers Compensation Judge cannot review a bill that was paid in accord with Chapter 127 of the Pennsylvania Workers Compensation Act. The Court agrees with the Respondent. Here, there is no dispute as to Zurich s authorization of Cape Regional to provide a medical service to a claimant with a pending workers compensation claim in Pennsylvania. Undated correspondence attached to the moving papers read, in pertinent part, as follows: To: Cape Regional Medical Center Mr. Dennis P.., Workers Compensation Claims Specialist of Zurich Insurance has approved payment for a stress test for the above-named individual, J.D. His confirming regarding this test is attached. Terence H.W., MSW CRC Case Manager ASN 610 XXX-XXXX Pursuant to the above correspondence, Cape Regional agreed to provide services to a New Jersey resident under a Pennsylvania claim number. While there was no written agreement as to the billing rate or the cost of those services, the letter noted above is a memorialization of an offer to pay Cape Regional for the services performed on J.D. Cape Regional went on to provide those services and thereafter submitted its bill for payment, as agreed. Zurich s Pennsylvania claims handler paid Cape Regional s bill and presumably, the payment made to Cape Regional was in accord with the rules and regulations set out in Chapter 127 of Pennsylvania s Workers Compensation Act. Clearly, based upon this Court s interpretation of Pennsylvania s statute, Cape Regional has statutory standing to make a timely application for medical fee review by the Pennsylvania Bureau of Workers Compensation (hereinafter referred to as the Bureau. ). If the reasonable and customary charges in New Jersey are greater than the reasonable and customary charges in Pennsylvania then Cape Regional may make that argument to the Medical Review Officer in that proceeding. This Court interprets Chapter 127 of the Pennsylvania Workers Compensation Act as giving its courts exclusive jurisdiction over disputes arising from payments made by insurers or self-insured employers to providers for medical treatment provided to employees with work-related injuries and illnesses in Pennsylvania. Cape Regional does not have a choice in forum. Cape Regional s bill was paid in accord with Pennsylvania s Workers Compensation Medical Cost Containment Act and a dispute over the amount and timeliness of the payment made to Cape Regional cannot be heard by a New Jersey 5

6 Workers Compensation court. The dismissal of this MPC in New Jersey is entirely consistent with the decision in the Christodoulou case and the rules adopted by our Appellate Division which require a medical provider to seek payment for its unpaid bill in the worker s pending workers compensation claim. That pending claim, in this case, is not in New Jersey. For the reasons set forth herein the Respondent s Motion to Dismiss is granted. A Dismissal Order is attached to this decision. DATED: Hon. Ingrid L. French, P.J.W.C. Cc: Law Offices of Sean R. Callagy, Esq. By Andrew P. Slowinski, Esq. 650 From Road, Suite 565 Paramus, New Jersey ATTORNEYS FOR MEDICAL PROVIDER/APPLICANT Cipriani & Werner, P.C. By John J. Carvelli, Esq. 155 Gaither Drive, Suite B Mt. Laurel, N.J ATTORNEYS FOR RESPONDENT/ZURICH in NEW JERSEY 6